Just How Right Is The Copyright Board?

There's a nasty spat going on in Ottawa within another one of those Old World quasi-judicial government agencies that isn't the CRTC.

This time it's the Copyright Board of Canada, a powerful regulator that decides on tariffs for the use of copyrighted content for distribution to rights collectives, and a bureaucracy that has about as much sizzle to the average citizen as foot powder.

The spat is more a bullying tactic that is ordering rights agency Connect to hand over a sheaf of confidential agreements with a mitt full of small Canadian firms licensed to webcast music over the Internet.

The bully is a wealth of powerful BDUs, Apple Canada, Hotel Association of Canada, campus and community radio association NRAC, and Stingray Digital Group.

Bizarrely, the intimidation involves a tariff that Connect and its eight rights agreement holders named have no standing in or contest over.

The hearing is focused on a pay audio services tariff payable by Stingray Digital to copyright collectives' SOCAN and Re:Sound.

The whole process in applying for tariffs is at the very least Byzantine, cloaked in confidentiality and offering little in the way of transparency or accountability. More important, the Board is structured in such a fashion that standing is really limited to those who have deep pockets to pay for top gun IP lawyers to present evidence and argue their case.

Stripped of its bureaucratic finery, the Board should have a formula that lets both sides of the fence, those paying and those collecting, know how and what the rates are going forward. In arriving at new tariffs to cover new technologies, there again should be some sort of formula that pegs fees to some sort of revenue model. The agency's decisions are often difficult to fathom, sometimes flawed and too often drawn out.

Greg Nisbet is one of the eight webcasters unwittingly caught up in this latest round of legal roundabout between SOCAN, Re:Sound and the agency charged with deciding on a new pay audio tariff for the BDUs and those named above who are 'objectors' in the rate hearing.

Without the resources to hire a Bay Street law firm to represent his interests and those of Mediazoic, his firm, Nisbet finds himself handcuffed in protecting a heretofore confidential agreement with Connect that has been ordered to submit, along with those of seven other webcaster agreements, to the agency and to those companies with standing that are his much larger competitors.

In a letter to the Copyright Board dated May 8, Nisbet makes no bones that he finds his licensing agreement now viewable by competitors without explanation and without a quid pro quo to be deeply disturbing.

"I learned with shock and dismay," his letter opens, of "an order by the Copyright Board to Connect Music to produce a copy of our highly confidential non-interactive streaming agreement, details of which could then be learned by legal counsel of the 'Objectors' in the Pay Audio Services proceeding."

Nisbet goes on to say as a small entrepreneur he was "a first mover" in the Canadian webcasting space and that his delicate and dynamic approach to artist rights in developing a template agreement for future webcasters and collectives became an "industry standard."

Continuing, "As such, I can understand the Copyright Board might want to access some of the information contained in our agreement, especially given my own public advocacy of artist-friendly streaming rates.

"What I can't understand is what possible public benefit could come from any of the Objectors having access to our highly confidential information. This seems to be a clear case of a group of large, well-funded media companies taking strategic advantage of a periphery-related process to gain important commercial information (about competitors) that would otherwise be impossible to obtain."

He also asks the question: "I am unclear as to how counsel for the Objectors is justifying the need to access this information. Do all the Objectors have access to each other's agreements as part of the process?"

In a dramatic flourish, Nisbet winds down by stating that he expects a level playing field in which "we are granted access to any of the Objectors' webcasting agreements."

He then asks the Board to reconsider the "wisdom" of its order for Connect to produce the documents.

Nisbet says he didn't want to go public with his laundry but he finds himself in an impossible situation and if the Copyright Board isn't interested in hs definition of fairness, perhaps the court of public appeal will.

The response to his reasoned plea, he says, is without substance and stamped confidential, as are most of the documents related to the filings, and legal counsel for all sides are prevented from discussing the case since it has yet to be decided on.

The drama underscores the necessity of dragging an agency that has been careful to keep its head down in the public arena and bound by complexity rather than transparency and a set of clearly defined tariffs that are pegged to revenues and an inflation index.

We will keep you apprised of what the bullies win or lose, and whether Connect submits to the 'order' or decides to appeal the board's decision.

David Farrell

David Farrell has worked at the forefront of Canadian music journalism for over 30 years, founding and editing The Record in the 1980s, before launching FYI Music News...